Law Opinion
Why observe the World Refugee Day?
Barrister Harun ur Rashid
On 20th June, the World Refugee Day is observed by all nations. It is to remind that refugees are helpless people, uprooted from their homes living in a foreign land due to compelling circumstances that are outside their control. Also to remind that 75% percent of the destitute in refugee population are women and children of developing countries. The current number of refugees is estimated to be around 20 million.
Who is a refugee?
A refugee is a person who crossed the border into another country because of fear of persecution. In 1971 many Bangladeshi became refugees in India because of atrocities perpetrated by Pakistani army on Bengali civilians.
The 1951 UN Convention Relating to the Status of Refugees defines a refugee as a person who leaves his or her homeland “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality membership of a particular social group or political opinion.”
This means that to be eligible as a refugee, a person must satisfy the following:
(a) A refugee must be outside his/her country of origin,
(b) He/she is unable to return to homeland because of well-founded fear of persecution and
(c) The persecution must be based on five reasons, namely, because of race, religion, nationality, and membership of a particular social group or political opinion.
Two phrases need to be noted in the definition of a refugee. The word “persecution” and the expression “well-founded fear” must be interpreted in their actual meaning. Persecution must be a pre-condition of leaving his/her country and the government of the country of origin fails to protect that person from being persecuted.
The phrase “well-founded fear” of persecution implies that there must be adequate facts on the ground to justify the notion of fear. Fear must be perceived as reasonable and mere statement of fear will not be sufficient. There must be subjective and objective grounds of constituting fear. It must not be imaginary and fear must be perceived in the future and not to the past.
However, a criminal or an active soldier or a fugitive cannot be regarded as a refugee. A refugee must be a civilian and must not be accused of any crimes.
It is noted that the “Beharis” in Bangladesh are not considered as refugees under the UN Convention because they did not cross the international border. Their case falls into a separate category.
Difference between a refugee and an asylum seeker or a displaced person:
A refugee may not be confused either with an asylum seeker or a displaced person. An asylum seeker may not satisfy the criteria laid down by the 1951 UN Convention for a refugee, although the person is outside the country for various reasons, for example former Prime Minister of Pakistan Benazir Bhutto is not considered to be a refugee but an asylum seeker in a country outside Pakistan.
A displaced person cannot be considered a refugee because the person is not outside his/her country. The person moves to another place within the same country because of fear of life or natural disasters or other circumstances, such as accidents in nuclear reactors. Empirical evidence suggests that mostly persons are displaced because of civil war within a country. It is estimated that about 13 million may be categorized as displaced persons.
Refuge to a foreign country is a component of fundamental rights:
The 1948 UN Universal Declaration of Rights makes it clear that everyone has a right to leave his/her country because of persecution. From time immemorial it has been noted that people leave their country of origin because of persecution. For example, during Roman rule, many Christian people had to leave the Roman Empire because of persecution. During the 18th and 19th centuries, refugees fled to the United States because of religious persecution of being Protestants.
In 1936, many Jews had to leave `Germany because of persecution under Hitler. The World Wars I and II set in motion hundreds of thousands of refugees. The most visible case is the Palestinian refugees, constituting about 3.5 million, majority of them live in Jordan and Lebanon.
Origin of the UN Convention on Refugees:
It was the Second World War that set in motion countless refugees in Europe. To deal with the situation, a conference was held in 1949 and 1950 in Geneva under the auspices of the UN. It was attended by 26 states, 16 of them were European. The Convention on Refugees was adopted in 1951 and came into force in 1954.
An office of High Commissioner for Refugees (UNHCR) was set up by a UN General Assembly resolution in 1950 to look after refugees. UNHCR is an operational agency with an estimated budget of US1.3 billion. It is based in Geneva. In South Asia, UNHCR regional office is located in New Delhi.
The first High Commissioner for Refugees was Gerrit van Hueven Goedhart and the current High Commissioner is Antonio Guterres. They are appointed by the UN Secretary General in consultation with key countries which have sheltered refugees.
This 1951 Convention is the “Bible”, determining the status of refugees. Later in 1967 the limitation of time for the applicability of the Convention was removed by a Protocol. The provisions of the Convention are binding on the parties of the Convention. However, the general guidelines of constituting a refugee are being complied with by all nations, including countries of South Asia which are not parties to the Convention. They all consider the issue as a humanitarian one.
Does the Refugee Convention meet the requirements of the 21st century?
A question has arisen as to whether the 1951 Convention meets the situation of 21st century. There is a view that the original definition of a refugee in the Convention has been based on breaches of political and civil rights and is too narrow. Currently in a changed global environment, there are many situations, such as extreme poverty, loss of a country or a part of country due to rise of water on the sea due to global warming and civil war. These situations are not covered by the Convention.
Many countries, mostly from developing world, perceive that the Convention does not meet the current circumstances of the modern time and needs to be revised. Refugee is created through action of a country. Refugees fled to another country and are looked after by the country of refuge with the support of UNHCR.
In refugee situation, three parties are involved, that is, the country which is responsible for creating refugees, the country where they take refuge and the UNHCR that has a mandate to look after them. However the Convention is silent on the obligations of the country that sets in motion the flow of refugees. It needs to be seriously considered as to whether the country from where refugees come is to fund the expenses of refugees.
On the other hand, many developed countries do not see the problem in the perspective. As viewed by developing nations. They consider the 1951 Convention too expansive and want to narrow the application of the Convention. Already the European Union and Australia have become “fortress” and severely restricted the entry of refugees by adopting domestic laws and consequently they have illegally limited the application of the Convention.
It means that developing and developed nations wish to revise the 1951 Convention for entirely different reasons. While developing nations want to expand the applicability of the Convention, developed nations want to restrict the scope of the Convention. There is no meeting of minds between them and the Convention remains as it is.
Bangladesh and refugees
Bangladesh people have seen the problem from two perspectives. In 1971, 10 million people of Bangladesh became refugees in India and in other countries. Most of them returned to Bangladesh after the cessation of war and when Bangladesh became an independent sovereign nation.
Bangladesh has to face its first huge refugee problem in 1978 from Myanmar. The Muslims living in Arakan ( commonly known as Rohingyas) fled to Bangladesh and the number was about 200,000 ( the writer was personally involved as a Director General of the Foreign Office). Bangladesh had to look after them in refugee camps near the border with the assistance of UNHCR (UN High Commissioner for Refugees). Later they returned when Myanmar concluded a bilateral agreement with Bangladesh on repatriation in 1978.
In 1991 and 1997, flow of refugees came from Myanmar. They were looked after in 17 refugee camps and their total number stood nearly 300,000. Although majority of them were repatriated, 21,172 refugees remain in Bangladesh and lately (May 2006) Myanmar agreed to take about 8,000 of them.
Conclusion
Since refugee exercises his/her fundamental right, every country should accept refugees and look after them with support of UNHCR. No one should return to his/her country of origin until and unless his/her safety is assured. Voluntary repatriation is the method of return and o their country of origin and no one should be forced to go back to his/her country of origin.
Recently the UN High Commissioner for Refugees, Antonio Guterres, in an interview criticized the developed nations (particularly Australia) in projecting refugees as unwanted persons in their community and for their xenophobic reactions towards refugees. Such vilification of refugees is uncalled for and is contrary to their obligations under the Convention.
On this Day, all governments of nations must commit to themselves to accept and protect refugees. Refugees are created by actions of states and international community must censure or condemn countries for setting in motion for refugees. If citizens are treated harshly in a systematic and prolonged manner by a country, international humanitarian intervention is possible under the UN to protect the people as we have seen in 1999 that Serbia was bombed by NATO for its cruel actions against Muslims in Kosovo.
The write is former Bangladesh Ambassador to the UN, Geneva.
